Beyond charity : outlines of a jurisprudence for civil society

There is not a single, coherent, jurisprudence for civil society organisations. Pressure for a clearly enuciated body of law applying to the whole of this sector of society continues to increase. The rise of third sector scholarship, the retreat of the welfare state, the rediscovery of the concept of civil society and pressures to strengthen social capital have all contributed to an ongoing stream of inquiry into the laws that regulate and favour civil society organisations. There have been almost thirty inquiries over the last sixty years into the doctrine of charitable purpose in common law countries. Those inquiries have established that problems with the law applying to civil society organisations are rooted in the common law adopting a ‘technical’ definition of charitable purpose and the failure of this body of law to develop in response to societal changes. Even though it is now well recognised that problems with law reform stem from problems inherent in the doctrine of charitable purpose, statutory reforms have merely ‘bolted on’ additions to the flawed ‘technical’ definition. In this way the scope of operation of the law has been incrementally expanded to include a larger number of civil society organisations. This piecemeal approach continues the exclusion of most civil society organisations from the law of charities discourse, and fails to address the underlying jurisprudential problems. Comprehensive reform requires revisiting the foundational problems embedded in the doctrine of charitable purpose, being informed by recent scholarship, and a paradigm shift that extends the doctrine to include all civil society organisations. Scholarly inquiry into civil society organisations, particularly from within the discipline of neoclassical economics, has elucidated insights that can inform legal theory development. This theory development requires decoupling the two distinct functions performed by the doctrine of charitable purpose which are: setting the scope of regulation, and determining entitlement to favours, such as tax exemption. If the two different functions of the doctrine are considered separately in the light of theoretical insights from other disciplines, the architecture for a jurisprudence emerges that facilitates regulation, but does not necessarily favour all civil society organisations. Informed by that broader discourse it is argued that when determining the scope of regulation, civil society organisations are identified by reference to charitable purposes that are not technically defined. These charitable purposes are in essence purposes which are: Altruistic, for public Benefit, pursued without Coercion. These charitable puposes differentiate civil society organisations from organisations in the three other sectors namely; Business, which is manifest in lack of altruism; Government, which is characterised by coercion; and Family, which is characterised by benefits being private not public. When determining entitlement to favour, it is theorised that it is the extent or nature of the public benefit evident in the pursuit of a charitable purpose that justifies entitlement to favour. Entitlement to favour based on the extent of public benefit is the theoretically simpler – the greater the public benefit the greater the justification for favour. To be entitled to favour based on the nature of a purpose being charitable the purpose must fall within one of three categories developed from the first three heads of Pemsel’s case (the landmark categorisation case on taxation favour). The three categories proposed are: Dealing with Disadvantage, Encouraging Edification; and Facilitating Freedom. In this alternative paradigm a recast doctrine of charitable purpose underpins a jurisprudence for civil society in a way similar to the way contract underpins the jurisprudence for the business sector, the way that freedom from arbitrary coercion underpins the jurisprudence of the government sector and the way that equity within families underpins succession and family law jurisprudence for the family sector. This alternative architecture for the common law, developed from the doctrine of charitable purpose but inclusive of all civil society purposes, is argued to cover the field of the law applying to civil society organisations and warrants its own third space as a body of law between public law and private law in jurisprudence.

Charities, civil society and the charity law reviews on the island of Ireland

This article considers the opportunity, presented by the coincidence of simultaneous charity law reviews in the two jurisdictions on the island of Ireland, for an adjustment of charity law frameworks to maximise appropriate and effective charitable activity within each jurisdiction,while also facilitating the coordination of some such activity between both. It examines the nature of civil society and charity law, and the relationship between them. The article argues that a creative legislative response to this opportunity could address themes of social inclusion common to both jurisdictions and thereby contribute to the consolidation of civil society on this island.

In the bank or on the ground : an examination of financial reserves in Australian international aid organisations

This study contributes to the understanding of the contribution of financial reserves to sustaining nonprofit organisations. Recognising the limited recent Australian research in the area of nonprofit financial vulnerability, it specifically examines financial reserves held by signatories to the Code of Conduct of the Australian Council for International Development (ACFID) for the years 2006 to 2010. As this period includes the Global Financial Crisis, it presents a unique opportunity to observe the role of savings in a period of heightened financial threats to sustainability. The need for nonprofit entities to maintain reserves, while appearing intuitively evident, is neither unanimously accepted nor supported by established theoretic constructs. Some early frameworks attempt to explain the savings behaviour of nonprofit organisations and its role in organisational sustainability. Where researchers have considered the issue, its treatment has usually been either purely descriptive or alternatively, peripheral to a broader attempt to predict financial vulnerability. Given the importance of nonprofit entities to civil society, the sustainability of these organisations during times of economic contraction, such as the recent Global Financial Crisis, is a significant issue. Widespread failure of nonprofits, or even the perception of failure, will directly affect, not only those individuals who access their public goods and services, but would also have impacts on public confidence in both government and the sectors’ ability to manage and achieve their purpose. This study attempts to ‘shine a light’ on the paradox inherent in considering nonprofit savings. On the one hand, a public prevailing view is that nonprofit organisations should not hoard and indeed, should spend all of their funds on the direct achievement of their purposes. Against this, is the commonsense need for a financial buffer if only to allow for the day to day contingencies of pay rises and cost increases. At the entity level, the extent of reserves accumulated (or not) is an important consideration for Management Boards. The general public are also interested in knowing the level of funds held by nonprofits as a measure of both their commitment to purpose and as an indicator of their effectiveness. There is a need to communicate the level and prevalence of reserve holdings, balancing the prudent hedging of uncertainty against a sense of resource hoarding in the mind of donors. Finally, funders (especially governments) are interested in knowing the appropriate level of reserves to facilitate the ongoing sustainability of the sector. This is particularly so where organisations are involved in the provision of essential public goods and services. At a scholarly level, the study seeks to provide a rationale for this behaviour within the context of appropriate theory. At a practical level, the study seeks to give an indication of the drivers for savings, the actual levels of reserves held within the sector studied, as well as an indication as to whether the presence of reserves did mitigate the effects of financial turmoil during the Global Financial Crisis. The argument is not whether there is a need to ensure sustainability of nonprofits, but rather how it is to be done and whether the holding of reserves (net assets) is an essential element is achieving this. While the study offers no simple answers, it does appear that the organisations studied present as two groups, the ‘savers’ who build reserves and keep ‘money in the bank’ and ‘spender-delivers’ who put their resources ‘on the ground’. To progress an understanding of this dichotomy, the study suggests a need to move from its current approach to one which needs to more closely explore accounts based empirical donor attitude and nonprofit Management Board strategy.

Discharging not-for-profit accountability: UK charities and public discourse

Purpose: This paper aims to examine the accountability practices of large United Kingdom (UK) charities through public discourse.
Design/methodology/approach: Based on the ethical model of stakeholder theory, the paper develops a framework for classifying not-for-profit (NFP) accountability and analyzes the content of the annual reports and annual reviews of a sample of large UK charities using this framework.
Findings: The results suggest that contrary to the ethical model of stakeholder theory, the sample charities’ accountability practices are motivated by a desire to legitimize their activities and present their organizations’ activities in a positive light. These results contradict the raison d’eˆ tre of NFP organizations (NFPOs) and the values that they espouse. Research limitations/implications: Understanding the nature of accountability reporting in NFPOs has important implications for preparers and policy makers involved in furthering the NFP agenda. New research needs to examine shifts in accountability practices over time and assess the impact of the recent self-regulation developed to enhance sector accountability.
Originality/value: This paper contributes to the NFP accountability literature by: first, developing a framework of NFP accountability through public discourse using the ethical model of stakeholder theory; and second, advancing the understanding of the accountability practices of large UK charities.

Beyond normal competencies : understanding organisation designs to develop and sustain IT-related capabilities

It is apparent that IT resources are important for organisations. It is also clear that organisations unique competencies, their IT-related capabilities, leverage the IT resources uniquely to create and sustain competitive advantage. However, IT resources are dynamic, and evolve at an exponential rate. This means that organisations will need to sustain their competencies to leverage opportunities offered by new IT resources. Research on ways to sustain IT-related capabilities is limited and a deeper understanding of this situation is important. Amongst other factors, a possible reason for this lack of progress in this area could be due to the lack of validated measurement items of the theoretical constructs to conduct such studies. We suggest an environment in which organisations could build new and sustain their existing IT-related capabilities. We then report on the development of valid and reliable measures for this environment. The validated measures would be useful in extending our understanding on how firms could sustain their IT-related capabilities. This effort will provide a deeper understanding of how firms can secure sustainable IT-related business value from their acquired IT resources.

Annual report on the status of the civil rights and equal opportunity program to the Subcommittee on Transportation, Committee on Environmental and Public Works, United States Senate.

Title from cover.

'It's a double-edged thing':the paradox of civil partnership and why some couples are choosing not to have one

Since their introduction in 2005, thousands of same-sex couples in the UK have had a civil partnership. However, many other couples have chosen not to have one. This qualitative study explores why some same-sex couples are choosing not to have a civil partnership. Seven semi-structured interviews were conducted with 12 people (five couples and two individuals) who identified as lesbian, gay or bisexual, and analysed using discourse analysis. Participants' accounts were characterised by ambivalence about civil partnership, and three main paradoxes were identified: the 'good but not good enough' paradox, the 'unwanted prize' paradox and the 'legal rights v. social oppression paradox. A major source of ambivalence was support for rights but resistance to assimilation into dominant heteronormative cultural frameworks. Participants negotiated this ambivalence in a variety of ways, including considering how to have a civil partnership that is different from 'marriage', and adopting a pragmatic position. The analysis highlights the importance of social recognition and support for a range of relationship forms and identities, as well as for an ongoing critical debate about civil partnerships and same-sex marriage. © The Author(s) 2011.

Early relational reasoning and the novice programmer : swapping as the “hello world” of relational reasoning

We report on a longitudinal research study of the development of novice programmers in their first semester of programming. In the third week, almost half of our sample of students could not answer an explain-in-plain-English question, for code consisting of just three assignment statements, which swapped the values in two variables. We regard code that swaps the values of two variables as the simplest case of where a programming student can manifest a SOLO relational response. Our results demonstrate that the problems many students face with understanding code can begin very early, on relatively trivial code. However, using traditional programming exercises, these problems often go undetected until late in the semester. New approaches are required to detect and fix these problems earlier.

Towards a secure human-and-computer mutual authentication protocol

We blend research from human-computer interface (HCI) design with computational based crypto- graphic provable security. We explore the notion of practice-oriented provable security (POPS), moving the focus to a higher level of abstraction (POPS+) for use in providing provable security for security ceremonies involving humans. In doing so we high- light some challenges and paradigm shifts required to achieve meaningful provable security for a protocol which includes a human. We move the focus of security ceremonies from being protocols in their context of use, to the protocols being cryptographic building blocks in a higher level protocol (the security cere- mony), which POPS can be applied to. In order to illustrate the need for our approach, we analyse both a protocol proven secure in theory, and a similar proto- col implemented by a �nancial institution, from both HCI and cryptographic perspectives.

Understanding Accountability in Social Enterprise Organisations: A Framework

Purpose: Social enterprise organisations (SEOs) operate across the boundaries of the public, private and not‐for‐profit (NFP) sectors in delivering public services and competing for resources and legitimacy. While there is a rich literature on accountability in the private and public sectors, together with the wider NFP sector, SEOs have received comparatively little attention and remain a relatively under‐researched organisational form. Drawing on accountability, legitimacy and user‐needs theories, the purpose of this paper is to develop a practical framework which can be used to explore how accountability within SEOs is constructed and discharged.

Design/methodology/approach: This paper draws on user‐needs, accountability, legitimacy and impression management theories expounded in relation to the private, public and NFP sectors.

Findings: A framework to better understand how accountability can be discharged by SEOs is developed and discussed.

Research limitations/implications: While a framework for better understanding SEO accountability is presented, it is not empirically tested. However, the framework has the potential to facilitate a deeper appreciation of the theory and practice of accountability within SEOs and, notwithstanding the inherent difficulties in measuring and managing accountability, could be used to stimulate practitioner involvement.

Practical implications
– As little is known about the current extent of SEO information disclosure or accountability relationships, the framework could be used to assess the discharge of accountability by SEOs, with the findings informing future developments. This should provide useful insights into internal processes and organisational views on accountability bases and mechanisms and can then be used to inform the debate on how SEOs can best discharge their duty to account.

Social implications
– Understanding the nature of SEO accountability reporting has important implications for those involved in advancing the SEO agenda. At a time of public sector cutbacks, and with the government searching for new and more effective ways of delivering services, the role of SEOs in this process is likely to receive greater attention and scrutiny.

Originality/value
– SEOs have grown extensively in size and prominence in recent years and policymakers have come to embrace the role that they play in societal development. This paper responds to a gap in the theoretical literature and contributes to the debate by developing a framework which can be empirically tested. Moreover, it can be used to prompt practitioner involvement and facilitate a better understanding of the complex issues surrounding accounting and accountability in this under‐researched area.

Modernising charity : steps to an alternative architecture for common law charity jurisprudence

This chapter addresses the question, how can the common law concept of charity law be modernised? There are difficulties with the present jurisprudential conception. The focus of the chapter is not on those difficulties, however, but rather on the development of an alternative architecture for common law jurisprudence. The conclusion to which the chapter comes is that charity law can be modernised by a series of steps to include all civil society organisations. It is possible if the ‘technical’ definition of charitable purpose is abandoned in favour of a contemporary, not technical concept of charitiable purpose. This conclusion is reached by proposing a framework, developed from the common law concept of charities, that reconciles into a cohesive jurisprudential architecture all of the laws applying to civil society organisations, not just charities. In this section, first the argument is contextualised in an idea of society and located in a gap in legal theory. An analogy is then offered to introduce the problems in the legal theory applying, not just to charities, but more broadly to civil society organisations. The substantive challenge of mapping an alternative jurisprudence is then taken in steps. The final substantive section conceptualises the changes inherent in a move beyond charities to a jurisprudence centred on civil society organisations and how this would bring legal theory into line with sectoral analysis in other disciplines.

Options for the development of the New Zealand Law of Charities

The Australian Centre for Philanthropy and Nonprofit Studies was briefed to advise the Charities Commission of New Zealand on ways in which the law of charity might be developed. The substantive issue underpinning the brief is a need to enable charity law in New Zealand to continue to develop in accordance with the societal values of New Zealand. This is an options paper and as such it does not explain the current law, but is intended to generate constructive discussion. Four options are sketched, with important issues and implications for each. No recommendation is made to adopt a particular option; there are strengths and weaknesses, opportunities and threats with each of the four approaches canvassed.

Charity law review and civil society : paving the way from alienation to social inclusion in Northern Ireland ; the resonance with experience in Australia

This paper considers the opportunity, presented by the forthcoming charity law review in Northern Ireland, for adjusting the charity law framework so as to focus charitable activity on the circumstances typical of societies in conflict or experiencing transition. This opportunity is one for broadening the definition of 'charitable purpose' to include activities directed towards forestalling alienation and facilitating social inclusion. It would include rehabilitating the victims of social confrontation and developing related services of advocacy, mediation and reconciliation. It argues that a creative response to this opportunity could address the current social inclusion agenda and thereby contribute to the consolidation of civil society in this jurisdiction. It suggests that the experience in Northern Ireland, as an exemplar of a society in transition, has a resonance with the experience in Australia. It further suggests that it could also have a relevance for approaching the management of tensions within or between nations where people may otherwise come to perceive themselves as alienated...